ICC-01/11-25-Anx1-Red 05-06-2012 1/12 NM PT

Public redacted version OfICC-Ol/11-25-Conf-Exp-Anxl ICC-01/11-25-Anx1-Red 05-06-2012 2/12 NM PT

Cour Penale { /\T7\~ _In_t_e_r_n_a_ti_o_n_a_le ~ ~¥ _ InternationaI ~J Criminal Court

Original: English No.: ICC-Oll11 Date: 03/06/2012

PRE-TRIAL CHAMBER I

Before: Judge Silvia Fernandez de Gurmendi, Presiding Judge Judge Hans-Peter Kaul Judge Christine Van den Wyngaert

SITUATION IN

Public Document with Confidential Annexes 1 & 2, ex parte, Legal Representative Only

Aisha Gaddafi's request for information relating to the status of the Prosecutor's investigations in the Libyan Situation

Source: Aisha Gaddafi, represented by Nicholas Kaufman

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Document to be notified in accordance with regulation 31 of the Regulations ofthe Court to:

The Office of the Prosecutor Counsel for the Defence Mr. Luis Moreno-Ocampo, Prosecutor Ms. Fatou Bensouda, Deputy Prosecutor

Legal Representatives of the Victims Legal Representatives of the Applicants Mr. Nicholas Kaufman

Unrepresented Victims Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

States' Representatives Amicus Curiae

REGISTRY Registrar Defence Support Section Ms. Silvana Arbia

Deputy Registrar

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section

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Relevant Procedural Background

1. On 20 October 2011, and Mutassim Gaddafi were tortured

and subsequently murdered near , Libya.

2. On 13 December 2011, Aisha Gaddafi petitioned the Prosecutor of the

International Criminal Court ("the Prosecutor") requesting to know what steps he had taken to investigate the crimes committed against her father and brother. The text of the letter is set out below:

As you are aware, your analysis of the Situation in Libya requires you to investigate the commission of alleged crimes by all parties to the conflict. To date, neither Ms. Gaddafi nor any member of her family has been informed, by your office, of the initiation of an investigation into the circumstances surrounding the brutal murders of her father Muammar Gaddafi and brother Mo'atassim Gaddafi. From the information at my disposal, it is clear that both Muammar Gaddafi and Mo'atassim Gaddafi were captured alive at a time when they posed no threat to anyone. They were subsequently murdered in the most horrific fashion with their bodies thereafter displayed and grotesquely abused in complete defiance of Islamic law. The images of this savagery were broadcast throughout the world causing my client severe emotional distress. In order, therefore, to assure my client that your office is faithfully carrying out an impartial investigation into all aspects of the Libyan situation, I would be grateful if you could provide me with answers to the following questions: 1) Is your office currently investigating the circumstances surrounding the murder of my client's father Muammar Gaddafi and brother Mo'atassim Gaddafi ?

2) If your office is not currently investigating the aforementioned crimes could you explain why and what steps have you taken to ensure that the Libyan authorities are, themselves, investigating the matter properly and in accordance with international investigative standards? 3) Is your office investigating the attack allegedly carried out by NATO forces on Muammar Gaddafi's convoy in order to determine whether individual criminal responsibility should be assigned for an unlawful military attack? Ifnot, could you explain why not? 4) Has your office received written details of the post-mortems performed on my client's

father Muammar Gaddafi and brother Mo'atassim Gaddafi ? If so, could you please send these documents to me?

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5) Could you explain why your office did not feel it necessary to send an independent expert of

its own to assist with and/or perform a separate post-mortem on my client's father

Muammar Gaddafi and brother Mo'atassim Gaddafi?

3. On 16 December 2011, the Prosecutor went on the public record stating that

the murder of Muammar Gaddafi was a possible war crime. 1

4. On 20 December 2011, the Office of the Prosecutor ("OIP") replied to Counsel as follows:

ThallI-.. ynu f(1" \'('1Ir Il'llt'r d.lll.:.·J 1:1 Dl:'l.:iI.!rnbet 2011 whi.:h ~·ou writ.- in YtHll ('(If1

TIlt" I'ro:.--ecution ha!i il dut,· of imp,1rtiilliry

dllegi.Hium. of Will' (Tlme~ committL'd by diHNf.·nt pilrtif'f, to lht.' ((1nflicl ill Libya, Libyan auth(lrities promi~ed In in\'l.!stigatc tht:· drcum-;tarlc('s of ~flhHl1mM Gadt.iafi·~ death. "The nt~W

g<'lvemmcnt hilS ill~m informl'd thr' Pros("culnr Il\.11 they ..1rt! prcpclr~ng il gCI1l!ral !.arah'gy tn

d~.Jl ",ith .,11 till' (rIm"'''' nHllmilll·d in Liby

1he Office uf ttw Prosecutor (CUP) ,..'ill rr\'SL"'\\' SlKh .;l(livl!i('s and t1hl~a.' :is findings ptJblic.- in ~1a" 2012 during the PmSeGitnr's St'cnnd n'port 10 the l:nitt!d \!.ltiuns Se-curity Council. During this report. tilt' OTP ,,'ill pr('st'nl it" 5tr.1tl"gy with rq::,ard~ to future investigations ut

alleged waT nimrs mmmlltl'a in Lihya tm::haiing till' killinh uf :\luammar Caddilii,

Sin('(' tl'h~ Cnurl jc; ,::omrk·rttt'ntMy 10 n,1Ii"111<11 pW(t:!cdings, tnt.' OTP .;h.ll,'gy will d,'p(~ud nn

the .Jcti\·itil...., Hi lhl' UhY_lr\ n.Htt)IMt

"LICh inn·~ti~.1tion~. TlK' possibdil\' h' (lmdm:t furth~r in\"esti~~thm:-:; i'i SUhjf'CI III thr' rlpp1"H\',~1

of ellt-' bLld~l't TL'ljue:-lt'd curn.lnti~" under discl.l~si{m in :'\l'\\' )"flrk.

5. On 16 May 2012, the Prosecutor presented his third (not second) report on the

Libyan situation to the Security Council of the United Nations.2 Despite declaring his intent to investigate alleged incidents of gender crime and arbitrary arrests, the Prosecutor made no mention whatsoever of his proposed strategy for investigating the murders of Muammar Gaddafi and Mutassim Gaddafi.

I http://af.reutcrs.comiarticlc/topNcws/idAFJOE7BFOOC2011l ') 16: ""I think the way in which Mr Gaddafi was killed creates suspicions of .,. war crimes," ICC prosecutor Luis Moreno-Ocampo told reporters". 2http::/\\'W\\I.icc-cpi.intl'NR/rdonlvrcs/D313B617-6A~6-4D64-88AD- :\89375C 18FB9/0iUNSCrepOltLibvaMav2012En!!.pdf.

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Submission

6. Aisha Gaddafi has standing to petition this learned Pre-Trial Chamber in so

far as she is a communicating victim applicant in the Libyan Situation and in

the case against Saif-al-Islam Gaddafi. This standing has been recognized by

the Registry3 and gives Aisha Gaddafi certain rights and expectations. Indeed, Pre-Trial Chamber II has ruled that there can arise various scenarios at the situational stage where the personal interests of victims may be affected and where judicial scrutiny is required. Pre-Trial Chamber II did not limit such

scenarios, so it is submitted, to a closed category and stipulated "that there may be other instances where victims' participation may be deemed appropriate by the

Chamber. "4

7. Aisha Gaddafi meets the requirements for victim status under Rule 85 of the Rules of Procedure and Evidence. She is a natural person who has suffered severe emotional trauma after witnessing the slaying of her father. As mentioned above, the Prosecutor himself has recognized that the murder of Muammar Gaddafi was a possible war crime. The trauma suffered by Aisha Gaddafi thus constitutes harm which has arisen "as a result" of a crime falling within the jurisdiction of the Court.

8. Aisha Gaddafi's present petition also satisfies the requirements for participation under Article 68(3) of the Rome Statute since her personal interests will be affected by the failure of the Prosecutor to instigate an investigation into the circumstances surrounding the murder of her father and brother. Indeed, the expectation of a "thorough and effective investigation capable ofleading to the identification and punishment of those responsible including effective access for the complainant to the investigative procedure" has been recognized as a

3 ICC-0l/11-0l/11-161+Anx1 and Rule 59(2) ofthe Rules ofProcedure and Evidence 4 ICC-Ol/09-24 at paragraph 12. No. ICC-01l11 5/9 3 June 2012 ICC-01/11-25-Anx1-Red 05-06-2012 7/12 NM PT

right protected under customary international law and acknowledged as such in the jurisprudence of the International Criminal Court.5

9. The Pre-Trial Chamber is reminded that the UN International Commission of Inquiry into Libya concluded that "further investigation" was required in order to establish the exact circumstances of the deaths of Muammar and

Mutassim Gaddafi.6 The International Commission of Inquiry also clearly established that the bodies of Muammar Gaddafi and Mutassim Gaddafi were displayed in contravention of international humanitarian law and that they were both subjected to grievous ill treatment and torture before being killed. Aisha Gaddafi suggests that the murder of her father - the public assassination of the leader of a nation and a former head of the African Union - is of no less gravity than either the murder of Rafiq-al-Hariri or the murder of AMIS peacekeepers at Haskanita (Sudan) both of which are being prosecuted before international criminal tribunals. Given that the work of the UN International Commission of Inquiry has now terminated, the only entity with the requisite mandate and expertise to carry out such an investigation is theOTP.

10. To this end, Aisha Gaddafi submits that the legislation and jurisprudence of the International Criminal Court imposes a duty on the Prosecutor to act "promptly" in the pursuit of his functions - especially with respect to his

evaluation of information leading to the opening of an investigation.7

11. The duty to act promptly is even more pronounced where pertinent forensic evidence may not be available at a later stage. The Rome Statute provides the

5 ICC-01/09-24 at fn 7. 6 Report of the International Commission of Inquiry on Libya, 2 March 2012, paras. 248 and 249: http://reliefweb.int/sites/re1iefweb.int/files/resources/A HRC 19 68 en%20 1 .pdf. 7 ICC-0l/05-6 in general and at fn.5 in particular: "A number ofprovisions ofthe Statute and the Rules embrace the "reasonable time" standard as well as other related standards such as "without delay", ''promptly'' or "in an expeditious manner" in relation to the exercise oftheir functions by the different organs ofthe Court. See inter alia articles 61(1) and (3), 64 (2), 67 (1) (c) and 82 (1) (d), and rules 24 (2) (b), 49 (1), 101 (1), 106 (1), 114 (1), 118 (1), 121(1) and (6) and 132 (1)".

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means for preserving such evidence by entitling the Prosecutor to inform the Pre-Trial Chamber of a unique investigative opportunity.s In light of the Prosecutor's pronouncement that the murder of Muammar Gaddafi is a suspected war crime, Aisha Gaddafi wishes to know what steps the OTP has taken to preserve crucial evidence pertinent to Muammar Gaddafi's murder, whether it be forensic analysis of the crime scene, autopsies, or ballistic examinations. The right of a victim applicant to benefit from "judicial scrutiny" in the context or in the expectation of such unique investigative opportunities has been explicitly recognized by the Court in both the Kenya and Uganda situations:

"However, the possibility that in special circumstances article 56 may also be applied prior to the case stage, as recognised by the jurisprudence of Pre-Trial Chamber I, cannot be discounted, and that participation ofvictims in the context of the procedure set out in the said article during the investigation of a situation may therefore be permitted".9

12. In previous filings, Counsel for Aisha Gaddafi has highlighted the various difficulties he has encountered in dealing with the prosecuting authorities in

Libya. lO Moreover, a request to receive pertinent information from Counsel for the Government of Libya at the International Criminal Court was similarly

unsuccessful.11

13. In any event, recent legislation enacted in Libya gives no reason whatsoever to believe that a proper investigation will be carried out by the Libyan authorities. Indeed, the investigation sought by Aisha Gaddafi would, without a doubt, be deemed contrary to the spirit of current domestic law. In this

8 Article 56 ofthe Rome Statute. 9 ICC-02/04-101 at para. 100. See also ICC-Ol/09-24 at paras. 12 and 16. 10 ICC-0l/II-01/11-47 at para. 7(b). 11 cf; Conf-Anx-I: Letter to Prof. Philippe Sands dated 1 May 2012 and Conf-Anx-2 Email from Prof Philippe Sands to herein undersigned Counsel dated 1 May 2012. This correspondence is filed confidentially given the classification accorded to the response by Prof. Philippe Sands.

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respect, the learned Pre-Trial Chamber is referred to the contents of a letter

sent by Human Rights Watch to the Prosecutor of the International Criminal

Court on 25 May 2012:

"On May 2, Libya's National Transitional Council (NTC) passed a new law that grants a blanket amnesty to those who committed crimes if their actions were aimed at "promoting or protecting the revolution" against Muammar Gaddafi. The new law, Law 38, On Some Procedures for the Transitional Period, says there shall be no penalty for "military, security, or civil actions dictated by the February 17 Revolution that were pelformed by revolutionaries with the goal of promoting or protecting the revolution." The same day, the NTC also passed Law 35, On Granting Amnesty for Some Crimes. While this law does exclude certain crimes from the amnesty it confers, including torture and rape, it fails to explicitly rule out other serious crimes, which might amount to war crimes or crimes against humanity, such as murder and forced displacement. "12

Relief Sought

14. Regulation 46(2) of the Regulations of the Court provides that the Pre-Trial Chamber is responsible for"any matter, request or information arising out of the

situation assigned to it",13 Moreover, Regulation 48(1) empowers the Pre-Trial Chamber to order the Prosecutor "to provide specific or additional information in his or her possession, or summaries thereof, that the Pre-Trial Chamber considers necessary in order to exercise the functions and responsibilities set forth in article 53,

paragraph 3(b), article 56, paragraph 3(a) and article 57, paragraph 3(c)". Aisha Gaddafi submits that these two aforementioned regulations are specifically designed to enable the Pre-Trial Chamber to intervene in order to preserve evidence or to query the Prosecutor's exercise of discretion where the Prosecutor has expressly or, as in the present situation, impliedly indicated

that he is not investigating a certain aspect of a referred situation. It is, furthermore, submitted that these provisions should entitle the learned Pre-

12 http://w\\'W.hrw.org/news/20 12/05/25ilibva-letter-icc-prosecutor-libvan-Clmnesrv-Iaws. 13 See also: ICC-Ol/05-6 at p.3 - an application which concerned the request ofa State Party for information on the status ofthe Prosecutor's investigation into the Central African Republic.

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Trial Chamber to act, proprio motu, even if it should decide that Aisha Gaddafi does not have the requisite standing to submit her present petition.

15. In light of all the aforementioned, and regardless of any Libyan investigation which mayor may not be underway, Aisha Gaddafi respectfully begs the learned Pre-Trial Chamber to order the Prosecutor to provide information as to the status of his investigations into the murders of Muammar Gaddafi and Mutassim Gaddafi. Aisha Gaddafi reiterates that these deaths are something which the UN Commission of Inquiry has considered worthy of further investigation and which, in the case of Muammar Gaddafi, the Prosecutor himself has deemed a suspected war crime.

16. Aisha Gaddafi makes this request of the learned Pre-Trial Chamber in the sad knowledge that if the Pre-Trial Chamber should decline her request, the torturers and murderers of her father and brother, their hierarchical superiors and their sponsors will never be held accountable for their shameless crimes.

Nicholas Kaufman Counsel for Aisha Gaddafi

Jerusalem, Israel

Sunday, June 03, 2012

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